Saturday, June 3, 2017

Minnesota's Constitutional Crisis

Minnesota is in the middle of a constitutional crisis. As is true with most constitutional crises,
it is a crisis precipitated by a political crisis. The political crisis is
battle between the legislature and the governor, rooted in political disagreement
and polarization, and where it is about ready to engulf the Minnesota Supreme
Court.

The constitutional
crisis has been long coming. It is
rooted in the change in Minnesota politics that began 20 years ago—perhaps marked
when Jesse Ventura won the governorship and the Republicans the House. That point represented the point when DFL
domination in the state since the 1960s ended, and the emergence of Minnesota
as a state increasingly torn by the political cultures of urban liberals and
rural conservatives. The DFL has lost
its farmer leg, and it is becoming clear that as Trump Democrats have fled the
party, it is also losing labor.

Since
1998 special sessions have become the norm—three for every four years—and there
were partial or near shutdowns in 2001, 2005, and 2011. In 2009 Pawlenty used his unallotment power
to balance a budget and end a legislative session. In all these instances, the Minnesota Courts
had to step in to resolve political disputes.
All these instances point both not only to the political forces dividing
Minnesota, but all were examples of constitutional crises; specifically, what
to do when the political process breaks down and fails to perform according to
the procedures outlined in the State Constitution.

Now we have another and
more glaring constitutional crisis. It appears to have started on Tuesday, May
30, the when governor announced that he was signing all the budget bills after
yet another special session. Yet, the
state constitution gives the governor the right to line-item veto specific
budget items. The governor chose to line-item veto the money that would fund
the state legislature for the next two years.
The governor said he was doing this for two reasons. First, he did not like what he called a
“poison pill” provision in the tax bill that would defund the Minnesota
Department of Revenue if he vetoed that bill.
Second, in a letter to the legislature he said that he would only
authorize funding for the legislature’s operation if they agreed to specific
changes in the budget bills he signed.
This would necessitate yet another special session.

This battle has
triggered a major political and constitutional battle in Minnesota
politics. One constitutional question is
whether the legislature can defund a state agency many deem essential without
violating the State’s separation of powers or single subject clauses in the constitution. Conversely, can the governor use his veto to
defund the legislature, also without violating this clause? These constitutional questions form the
context for perhaps a major political battle and negotiations, but it is also
certain that the Minnesota Supreme Court may be asked to settle these
questions, as it looks as if the state legislature is going to the court to sue
the governor.

In addition to the legal battles between the
governor and the legislature, this week the Minnesota court of Appeals upheld a
law passed by the state legislature two years ago that stripped away some of
the powers of the State Auditor by giving counties the discretion to hire
private auditors. This legal battle
raises separation of powers issues, but also questions regarding the State
Constitution’s single-subject rule which mandates that legislation may only
incorporate a single-subject. The law
removing some of the Auditor’s powers was included in another larger bill.

While Dayton’s line-item veto is the immediate cause
of the constitutional crisis, flagrant violation of the single subject rule by
the legislature is the real culprit.
Historically, the single-subject clause and the line-item veto are
connected and rooted in fear of legislative mischief that corrupted state
legislatures across the country. Back
then state legislatures were hotbeds of graft, corruption, and political shenanigans. The single-subject rule was adopted in many
states, including Minnesota, to prevent voter confusion, log-rolling, and the
slipping into major bills extraneous provisions under the cover of
darkness. If the single-subject
provision was unable to police the legislature, giving governors a line-item
veto would allow them to extract improper appropriation provisions from bills.

The stripping away of the State Auditor’s powers was
attached to a larger unrelated bill under the cloak of darkness. The same can be said about the legislature’s
poison pill in the tax bill. But even if
they were not hidden as the Republican legislative leaders contend, they still
violated the letter if not the spirit of the single-subject rule. They also point to how leadership has failed
to enforce germaneness rules that would keep policy and appropriation bills
separate. Viewed in this context, the
governor’s line-item veto was constitutionally under-minded. Yes, Dayton could have vetoed entire omnibus
budget bills, but that would have triggered another political and constitutional
crisis in terms of another governmental shutdown. No matter the choice Dayton faced, there was
a constitutional problem.

Viewed in isolation Dayton’s line-item vetoing of the
legislature’s funding is constitutionally wrong. He cannot use that veto to negate or
undermine the authority of another constitutionally-explicit branch of the
government—this is a major separation of powers issue. Yet if the only lawsuit filed is one by the
legislature then that may be the decision the Minnesota Supreme Court is forced
to bring. However, there needs also to
be a lawsuit brought by legislators—and Senator John Marty is contemplating one—raising
the single-subject rule to many of the omnibus bills passed this term. They should also join the State Auditor in
her appeal to the Supreme Court. Why? If the Court is given the opportunity to rule
on both the line-item veto and the single-subject rule then it would perhaps be
able either to join the cases or resolve them in a way that defines the proper
limits on what the legislature can do, thereby also drawing lines regarding
what the governor can do. Defining the
limits of the single-subject rule and the line-item veto would then also
clarify the separation of powers issue.

Of course, the Supreme Court could take another
approach-refuse to grant jurisdiction to the Republican challenge to the
governor, ruling the matter a political question for them to work out. While at one time that would have been a
viable solution, prior Minnesota court decisions to fund the state during a
shutdown, over unallotment authority, and even over the single-subject rule
make that option nearly impossible. The
constitutional crisis already has engulfed the state court system and it is not
clear it can simply walk away.

2 comments:

Dave.... I feel that you've "buried the lede". The root of our problems is the attitude of the legislature to combine and "omnibus" so many issues into one bill. A case can be made that this is a more efficient use of legislators time - "Hey we're already voting on Public Safety funding, let's tack some policy in there to save time" - but what's happening is that bills are being junked up in an attempt to make them attractive to more legislators.

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About Me

Professor in the political science department at Hamline University where he teaches classes in American politics, public policy and administration, and ethics.
Schultz holds an appointment at the University of Minnesota law school and teaches election law, state constitutional law, and professional responsibility.
He has authored/edited 30 books, 12 legal treatises, and more than 100 articles on topics including civil service reform, election law, eminent domain, constitutional law, public policy, legal and political theory, and the media and politics.
In addition to 25+ years teaching, he has worked in government as a director of code enforcement and for a community action agency as an economic and housing planner.